Ethics and Privacy
*Not actually Facebook’s terms and conditions…
Yesterday’s ruling by the Supreme Court of the United States, requiring the police to get a warrant before accessing a suspect’s mobile phone data, was remarkable in many ways. It demonstrated two things in particular that fit within a recent pattern around the world, one which may have quite a lot to do with the revelations of Edward Snowden. The first is that the judiciary shows a willingness and strength to support privacy rights in the face of powerful forces, the second is an increasing understanding of the way that privacy, in these technologically dominated days, is not the simple thing that it was in the past.
The stand-out phrase in the ruling is remarkable in its clarity:
13-132 Riley v. California (06/25/2014)
“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.”
Privacy advocates around the world have been justifiably excited by this – not only is the judgment a clearly privacy-friendly one, but it effectively validates some of the critical ideas that many of us have been trying to get the authorities to understand for a long time. Most importantly, that the way that we communicate these days, the way that we use the internet and other forms of communication, plays a far more important part in our lives than it did in the past. The emphasis on the phrase ‘the privacies of life’ is a particularly good one. This isn’t just about communication – it’s about the whole of our lives.
The argument about cell-phones can be extended to all of our communications on the internet – and the implications are significant. As I’ve argued before, the debate needs to be reframed, to take into account the new ways that we use communications – privacy these days isn’t as easily dismissed as it was before. It’s not about tapping a few phone calls or noting the addresses on a few letters that you send – communications, and the internet in particular, pervades every aspect of our lives. The authorities in the UK still don’t seem to get this – but the Supreme Court of the US does seem to be getting there, and its not alone. The last few months have seen a series of quite remarkable cases, each of which demonstrates that judges are starting to get a real grip on the issues, and are willing to take on the powerful groups with a vested interest in downplaying the importance of privacy:
These three cases all show similar patterns. They all involve individuals taking on very powerful groups – in the data retention case, taking on pretty much all the security services in Europe, in the other two the internet giants Google and Facebook respectively. In all three cases – as in the Supreme Court of the US yesterday – the rulings are fundamentally about the place that privacy plays, and the priority that privacy is given. The most controversial statement in the Google Spain case makes it explicit:
“As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name” (emphasis added)
That has been, of course, highly controversial in relation to freedom of information and freedom of expression, but the first part, that privacy overrides the economic interest of the operator of the search engine, is far less so – and the fact that it is far less controversial does at least show that there is a movement in the privacy-friendly direction.
The invalidation of the Data Retention Directive may be even more significant – and again, it is based on the idea that privacy rights are more important than security advocates in particular have been trying to suggest. The authorities in the UK are still trying to avoid implementing this invalidation – they’re effectively trying to pretend that the ruling does not apply – but the ruling itself is direct and unequivocal.
As for the decision in the Irish High Court to refer the ‘Europe vs Facebook’ case to the ECJ, the significance of that has yet to be seen, but Facebook may very well be deeply concerned – because, as the two previous cases have shown, the ECJ has been bold and unfazed by the size and strength of those it might be challenging, and willing to make rulings that have dramatic consequences. The Irish High Court is the only one of the three courts to make explicit mention of the revelations of Edward Snowden, but I do not think that it is too great a leap to suggest that Snowden has had an influence on all the others. Not a direct one – but a raising of awareness, even at the judicial level, of the issues surrounding privacy, why they matter, and how many different things are at stake. A willingness to really examine the technology, to face up to the ways in which the ‘new’ world is different from the old – and a willingness to take on the big players.
I may well be being overly optimistic, and I don’t think too much should be read into this, but it could be critical. The law is only one small factor in the overall story – but it is a critical one, and if people are to begin to take back their privacy, they need to have the law at least partly on their side, and to have judges who are able and willing to enforce that law. With this latest ruling, and the ones that have come over the last few months, the signs are more positive than they have been for some time.
Addendum: As David Anderson has pointed out, the UK Supreme Court showed related tendencies in last week’s ruling over the disclosure of past criminal records in job applications, in R (T ) v SSHD  UKSC 35 on 18th June. See the UKSC Blog post here.
On Saturday 21st June the People’s Assembly, Trade Unions and campaigning groups held what they described as a ‘national demonstration and free festival’ to ‘demand’ an alternative to austerity. As expressed on the People’s Assembly website:
“Living standards continue to drop, forcing millions into poverty, yet the politicians remain addicted to austerity.
This demonstration will assemble right on the BBC’s doorstep and march to Parliament to demand that the alternative to austerity is no longer ignored. Join us.”
50,000 or more people did join them, including Russell Brand, Green MP Caroline Lucas and others. And yet the result, at least as far as the BBC was concerned, was that the protest, and the alternative to austerity, was ignored. On the day, the BBC gave it no coverage at all, to the fury of the protest organisers and the radical twittersphere. Eventually the BBC did put up a cursory mention of the protest on their website, including a very short video with no commentary, but nothing of note on either their radio or TV news or current affairs programmes, at least nationally. There was coverage on some overseas media outlets (e.g. RT, Al Jazeera), on local broadcasts (so I am told) and in some of the newspapers, but nothing on the mainstream BBC, ITV, Channels 4 or 5.
Why was this? Is it a kind of conspiracy of silence – a closing of ranks by the establishment against the ‘alternative’, instructions from above or similar? Or is it, as Willard Foxton, writing in the New Statesman, put it, that:
“…the sad truth is “Lefties march in moderate numbers, again, and then go home, again”, isn’t much of a story”
Foxton’s article is well argued and, as someone who has been on many, many marches from the late 70s onward can testify, his observation ‘…that insanity is doing the same thing over and over again and expecting different results’ certainly has some application here. And yet that too misses the point – because though the chances of a genuine conspiracy of silence are minimal, coverage of politics and news in the mainstream TV and radio stations in the UK is remarkable in its narrowness and insularity. The term ‘Westminster Bubble’ applies much more directly to the media than it does to the politicians, most of whom do at least spend a decent amount of time in their constituencies. I made a couple of flippant remarks using my Nick Robinson Twitter parody account, @KipperNick, that seemed to resonate.
The point isn’t that there’s a conspiracy of silence or even a whiff of corruption here. I don’t believe either of those for a moment. The point is that the BBC, and their news and politics teams in particular, really do think that Nigel Farage in a pub is news, and protest marches aren’t news. They really believe that lefties marching in moderate numbers (and yes, in the BBC’s eyes 50,000 are moderate numbers) doesn’t constitute news – and, to be frank, I don’t think they’re necessarily wrong. Those kinds of numbers go to premier league football matches every week, and we wouldn’t call that news.
Where I would argue with the BBC is what, if protests aren’t considered news, the BBC and others do consider to be news. That’s where the @KipperNick tweets come in, and why, I suspect, they got so many RTs. The BBC has a role to play, and they have to understand their power – as anyone with even a cursory contact with that ‘Mickey Mouse’ subject ‘media studies’ should know, TV news plays a significant part not just in reporting but in setting the agenda. Through the narrowness of their coverage – their obsession with UKIP and with Nigel Farage in particular is just one manifestation of this – they can have a significant impact on politics. They can also generate great dissatisfaction and exacerbate the feeling of disconnection that many people have with both the media and the political process.
The fact that Russell Brand was the key celebrity figure at the march on Saturday should have made the point – Brand’s Newsnight performance last year was largely about this disconnection. People, and young people in particular do not feel included in the debate or the decisions about what’s happening in this country. On the subject of austerity, there seems to be almost complete consensus amongst the mainstream political parties – certainly the Tories, Lib Dems and Labour seem wedded to it, and though UKIP have said very little it would be hard to imagine that, libertarians as they sometimes claim to be, they would do anything but embrace austerity if they were ever given the chance. It’s not even up for discussion – either by the politicians or the media.
So what can those (myself included) who do not believe austerity is the solution, actually do? Organise more protest marches that will inevitably be similarly ignored to Saturday’s? If 50,000 wouldn’t get media attention, would 100,000? 500,000? Perhaps. If the protests turned violent, or became riots, that would get media attention – but would do nothing to change the minds of those behind austerity. Quite the reverse. So what else can be done? The more ‘modern’ alternatives like online petitions etc are even more useless and more easily ignored – indeed, most of the time they seem like the best way to dissipate any energy there is behind change.
The truth is, I don’t know the answer – I wish I did. I can understand why the BBC didn’t cover Saturday’s march – but I think they need to broaden their horizons and start looking beyond the Westminster Bubble and their increasingly tired and irrelevant political programmes. If they want – and they often claim to want – young people to be more engaged in politics, then they, as well as the protestors and campaigners, need to find new ways to do their job. In the end, I agree with Foxton that the protests were not really ‘news’ – but the movements behind them, and the debates that they’re trying to put forward are certainly, in my view, politically relevant. How can these arguments make it onto the news and into the mainstream? That is a challenge for both the campaigners and for the media. Both need to show more imagination.
Aside from the owls, I found little to be happy about in yesterday’s ‘big’ speech by Ed Miliband, and the IPPR report that it accompanied, ‘The Condition of Britain’. A great deal has already been said and written about it – I don’t want to go over old ground, just to write about two specific aspects that bother me, both for what they say immediately and directly and for what they imply about the underlying thoughts both of the IPPR and of Ed Miliband’s Labour Party. The first is the attitude to young people – specifically 18-21 year olds – and the second is what looks as though it’s supposed to be Ed’s ‘big idea’, the revival of the ‘contributory principle’. To me, both are fundamentally misconceived, and betray an acceptance of the false and damaging Tory ‘striver/scrounger’ dichotomy. What’s more, this is both in the overall message – a message which some of the people behind the report have insisted has been twisted and missed by the reactions of people on twitter and in the media – and in the detail. As instructed, I’ve downloaded and read the report, and I’ve read Ed Miliband’s speech. I’m not reassured. Not one bit.
Doing it for the kids?
Perhaps the most noted part of the report is how it deals with young people. The headline recommendation reads as follows:
“For 18–21-year-olds, existing out-of-work benefits should be
replaced by a youth allowance that provides financial support
conditional on looking for work or completing education,
targeted at those from low-income families”
That’s been taken a number of ways in the media – Job Seekers Allowance for young people being removed is perhaps the most common reactions. That is not, of course, entirely true. It hasn’t been removed, but replaced by something different. The devil, however, is in the detail. There are two key words in the recommendation: ‘conditional’ and ‘targeted’. The first is the compulsion part – effectively, unless the young people take up one of the work programmes or sign up for one of the training schemes, they won’t get the youth allowance. Aside from the complications around the way young people’s lives actually work (see for example this excellent blog post by Kate Belgrave) and the deep reservations many people have about training schemes (will they be run by such estimable organisations as A4e, G4S, Serco etc?) and whether any of this would be any different from the hated coalition workfare programmes, the whole idea of compulsion betrays a belief that, fundamentally, young people are scroungers and layabouts at heart. If we didn’t force them into things, they’d spend all day in bed, watching daytime TV or taking drugs. Sadly, however, that seems to be the general approach of all mainstream political parties these days.
However, when the report is examined in more detail, it gets worse – particularly when the second key word, ‘targeting’ is considered. This is from the section on young people:
“To pay for this expansion of support for young people
in education and training, we propose targeting the youth
allowance on those from lower-income families through
a parental means test. This would involve a presumption
that 18–21-year-olds who are not in employment would be
supported by their parents where this is possible…”
First of all, even bringing in a parental means test is (or rather should be) contentious. It has a number of effects. First of all, it adds bureaucracy and stress to an already stressful situation. Secondly, it is a reminder that many young people will be excluded from the allowance. ‘Targeting’ is a nice word – but when you target, you also exclude. Will the ‘right’ young people be excluded? It doesn’t just depend on wealth, it depends on ability to work the system, to fill in the forms and find a route through the often impenetrable language. Thirdly, and most importantly, it makes young people even more dependent than ever on their parents. Want an allowance? You have to put your parents through a humiliating procedure. Add to the equation the presumption that 18-21 year-olds will be supported by their parents, and the reality begins to hit home. This is a policy conceived by people who assume that young people have good and supportive relationships with their parents. Some do. I’m sure those behind the report do. But many don’t. Indeed, difficult relationships between young people and their parents can contribute to problems with getting jobs. For some, the best possible thing is to be able to leave their home at 18, to be independent. Forcing young people to stay in the family home, to be even more of a burden, to get their parents to be means-tested, could well be a recipe for disaster. It’s also patronising and demeaning for the young people – when you’re 20, do you want to be treated as though you’re 12?
Making a contribution…
The other aspect of the report is, for me, even more worrying: the emphasis on the ‘revival of the contributory principle’. The idea is peppered throughout the report, and emphasised in Ed Miliband’s speech. The idea, essentially, appears to be that those who make a contribution deserve to get more out of the system. The deserve more ‘protection’. Section 8.2 of the report is headlined ” STRONGER INCOME PROTECTIONS FOR PEOPLE WHO HAVE CONTRIBUTED TO THE SYSTEM.” The question that immediately arises is what does it mean to contribute to the system? When I look back at my life so far, three periods immediately spring to mind. The first is in my first ‘career’, as an accountant, auditing big financial organisations in the City of London. The second is the year I took off, to be a full-time father after my daughter was born. The third is my time as a ‘mature’ PhD student, researching into internet privacy. In which of those three did I make the best contribution to society? Working as an accountant, being a father, or doing what was then pretty pioneering research into a subject of huge current interest?
In the terms of this report, only the work as an accountant would ‘count’ – though in my mind, with hindsight, it was the period in which I made the least contribution to society. In the report’s terms, ‘contribution’ means contributing to National Insurance. Nothing more. We’re defined as economic units in GB plc. Other contributions – from child-rearing to caring for ill or disabled relatives, from studying to volunteering to many, many other things – are not considered at all. They may be paid a little lip-service here and there, but they’re not rewarded. And it must be remembered that for every reward, in these cash-strapped times, someone else goes without. What’s more, there are a great many people who can’t make a contribution on these terms, through no fault of their own. People with disabilities, people living in areas where there is no work, people trying to keep dysfunctional families together and so forth. Young people, in particular, having already been slammed directly and slammed still further – how can you have made a ‘contribution’ when you’re only just entering the workforce?
The message here is simple and direct: ‘workers’ are valued (and only for their work), anyone else isn’t. It drives home the damaging and false ‘striver vs scrounger’ agenda. If you ‘strive’ you’re good, and will be rewarded. If you don’t, you won’t.
A sad consensus
What makes me saddest is that this isn’t just Labour. Indeed, despite everything I’ve said, Labour are still probably not quite as bad as the Lib Dems or the Tories. There’s a consensus here that seems almost unstoppable. I can’t see how it can be changed – either for the Labour Party or for the country. The consequences are painful and divisive, and likely to get worse. Ah well. At least we get owls. A shame we don’t seem to have their wisdom.
The first thing the best boss I ever had told me was ‘if you make a mistake, tell me as soon as you can. That way we can find a solution.’ It’s a piece of advice that has always stuck with me – and I’ve tried my best to learn from it. I can’t always follow my own advice because, after all, I’m human. And that’s really the point. We all make mistakes – I know I’ve made some absolute stinkers, and some which have had significant consequences, though none quite on the scale of Tony Blair. The question is, what do we do about it? What can we learn from our mistakes? Over the last week or so, three of our politicians – Tony Blair, Ed Miliband and Boris Johnson have shown exactly how not to do it, in their own particular way.
Tony Blair is the worst of the lot, of course. His mistakes have cost hundreds of thousands of lives and will cost many, many more. They’ve destabilised the planet, fuelled and fostered hate and extremism, and left a mess which it’s hard to see any way out of. And yet, even now, he doesn’t do the first and most important thing: recognise that he’s even made a mistake. That’s the first lesson I learned from my boss – you have to see what you’ve done, be willing to admit that it’s a mistake, and then try to solve it. If you can’t even accept that you might have made a mistake – and that’s where Tony seems to be – there’s no chance of solving it. Indeed, Tony seems to have spent most of his career since sending the troops in trying to prove that he was right. Even now, it looks as though it’s all about that for him. He wants us to intervene militarily again in Iraq – and it’s hard not to conclude that his primary reason is to show us that we’re all wrong, and he was right all along. How many more will have to suffer for his ego?
Boris Johnson takes it to the next stage. Writing in the Telegraph, he describes Tony Blair as ‘unhinged’. It’s very hard to argue with Boris’s analysis of Tony:
“In discussing the disaster of modern Iraq he made assertions that are so jaw-droppingly and breathtakingly at variance with reality that he surely needs professional psychiatric help.”
Boris’s piece is an excellent piece of writing – he takes apart not only Tony Blair but the whole intervention in Iraq. His conclusion is excellent:
“Somebody needs to get on to Tony Blair and tell him to put a sock in it – or at least to accept the reality of the disaster he helped to engender. Then he might be worth hearing. The truth shall set you free, Tony.”
There are, however, a couple of problems with Boris’s analysis. Firstly, Boris doesn’t mention that he himself did not just vote for the invasion of Iraq, but advocated it very directly, speaking in Parliament in support of the action. He takes some responsibility for the decision, but not much. He, just like Tony, had the opportunity to listen to the people who opposed the war. He, just like Tony, could have wondered if the million+ who marched in London in opposition to the war, might, just possibly, have a point. He, just like Tony, could have wondered what the great haste to invade was, and could have asked us to wait for Hans Blix to report. He didn’t. Instead, he drummed the drums of war almost as much as Tony.
Secondly, and more importantly, he doesn’t seem to have learned the second, and most important lesson from the mistakes of Iraq. That is that we all make mistakes and we make them a lot of the time – and so we should be aware, at all times, that what we are doing might be a mistake. We should learn a little humility. We should be ready, at any time, to step back and say ‘hey, I might be wrong about this.’ Boris, like so many politicians, doesn’t seem to be able to make this step. The step of saying ‘I’m not sure,‘ or ‘I might be wrong’.
On a very different scale, he’s involved in a decision like this right now – about buying water cannon for the Metropolitan Police. He’s pushing the purchase through, not even waiting for official approval from Theresa May. He’s not willing to listen to those who oppose the idea. He’s not willing to consider that he might be wrong. He’s not really learned the lessons of Tony Blair and Iraq at all. Now of course water cannon in the London streets are worlds apart from invading Iraq – but there are similarities in principle. Can Boris learn? It seems unlikely, because our whole political culture – and Boris is steeped in that culture – makes the idea of realising that you’ve made a mistake, being able to admit it and hence really learn from it, almost impossible. Which brings me to Ed…
Ed Miliband’s mistake was to pose for a photo-shoot holding up a copy of the Sun. Variants of the picture have become a bit of a meme on the internet – my version is here, but you can find many, many different versions around. Ed’s mistake(s) are not on Boris’s scale, let alone Tony’s, but they do make me wonder about how politicians work. To pose with the Sun at any time is a risky matter for a Labour politician. To pose now is particularly foolish – as Ed, or at least Ed’s advisers, should have known. It’s not just that it’s the World Cup (which was the point of the photo-shoot), but that at this World Cup the England team has a huge contingent of Liverpool players. The captain (Gerrard), the main goalscorer (Sturridge), the young hope (Sterling) to start with. Ed’s advisers should have known that this is the 25th anniversary of Hillsborough. That the Hillsborough inquests are happening right now. That this has been the best season for Liverpool for two decades. All of this makes it not just sensitive but super-sensitive. It means that Ed’s photo-shoot was catastrophically ill judged….
…but we all make mistakes, as I said at the start. The question is what we do next. In Ed’s case, what he should have done next is make a proper apology. Not a half-arsed ‘sorry if you got offended’ apology, which doesn’t help either way, but a simple, straightforward and honest apology. To be unable to make such an apology – something along the lines of ‘sorry, I made a big mistake, an error of judgment’ – suggests that, just like Tony and Boris, Ed has not been able to even really acknowledge the mistake that he made. He just wants to ‘manage’ the situation. ‘Managing’ the situation doesn’t solve the problem. People are still upset. Their upset will come up again and again, particularly after the half-arsed apology.
In a way, it’s not about Tony, Boris or Ed. It’s about a culture where we can’t be seen to be weak. We can’t admit that we’ve made a mistake – even though we all know we make mistakes – and so we can’t really do what’s needed to solve them. I wish it were different, but even to admit that it’s a mistake not to admit mistakes is beyond our political culture it seems. That in itself is very sad.
I just recorded a very lo-tech one minute spot for Al Jazeera, on Snowden one year on. I should say, the lo-tech approach is intentional – Al Jazeera wanted webcam, smartphone or equivalent pieces.
My particular subject was the corporate response. Sorry for the dishevelled academic look….